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State v. Duerst2/17/2005
. The State appeals from an order to dismiss a charge of operating while intoxicated (OWI)-fourth offense against Todd Duerst. Duerst has three prior convictions for OWI, but his most recent conviction was for OWI-second offense. Duerst argues that the doctrine of issue preclusion bars the State from charging the current OWI offense as his fourth. Duerst also asserts that a charge of OWI-fourth offense would violate his due process rights. Because we believe that the circuit court acted within its discretion in finding that the State was precluded from charging Duerst with OWI-fourth offense, we affirm the court's order. We do not reach the due process issue.
Background
. Todd Duerst was convicted of operating a motor vehicle while intoxicated in Dane County in 1990. In 1998, he was convicted in Montana for a similar offense. In July 2000, Duerst was again charged with OWI, this time in Juneau County. Initially, the State charged Duerst with OWI-third offense. However, the prosecutor moved to amend the charge to OWI-second offense as part of a plea bargain. The court accepted Duerst's no-contest plea and ultimately entered a judgment of conviction for OWI-second offense. It is unclear why the prosecutor amended the charge, though Duerst's attorney in the prior proceeding testified in this litigation that the Montana conviction may not have been countable as a prior offense under Wis. Stat. § 343.307 (1999-2000).
. In August 2003, Duerst was arrested in Dodge County for OWI. A blood analysis showed Duerst's blood alcohol content (BAC) was .069. Under Wis. Stat. § 340.01(46m)(c), a person with three prior convictions may not drive with a BAC above .02. For a person with two prior convictions, the limit is .08. Section 340.01(46m)(a). Counting each of Duerst's three prior convictions for drunk driving as prior offenses, the State charged Duerst with OWI-fourth offense.
. Duerst moved to dismiss the charges. The circuit court granted his motion, finding the OWI-fourth offense charge barred by issue preclusion and violative of Duerst's due process rights. The State appeals.
Discussion
. The doctrine of issue preclusion prevents the relitigation of issues decided in an earlier proceeding. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). While issue preclusion was historically applied only to parties bound by a previous judgment, courts have moved away from such formalism and now apply a "looser, equities-based interpretation of the doctrine." Michelle T. v. Crozier, 173 Wis. 2d 681, 687-88, 495 N.W.2d 327 (1993).
. The Wisconsin Supreme Court has established a two-step inquiry for issue preclusion. The first step requires the court to consider two threshold questions: (a) whether there exists privity or identity of interest between the party against which preclusion is asserted and a party to the prior proceeding, Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224, 594 N.W.2d 370 (1999), and (b) whether the issue was "actually litigated" in the prior proceeding. Mrozek v. Intra Financial Corp., 2004 WI App 43, , 271 Wis. 2d 485, 678 N.W.2d 264, review granted, 2004 WI 138, 276 Wis. 2d 26, 689 N.W.2d 55 (Wis. Sep. 29, 2004) (No. 02-2448). Both of these inquiries present questions of law, which an appellate court reviews de novo. Id; Paige K. B., 226 Wis. 2d at 223. If the court finds that these threshold inquiries have been satisfied, it moves to the second step of the inquiry, whether it is fundamentally fair to apply issue preclusion in the particular case. Paige K. B., 226 Wis. 2d at 224-225.
. Here, as to the threshold issues, the parties to this case (the State and Mr. Duer
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